Pitfalls of summer internships, and summer in general

Summer has finally arrived in Oregon (according to the calendar, at least). However, for busy employers, the next few months may bring something far less desirable than warm weather – namely, a host of issues more likely to arise when workers want time off and graduates want jobs. Here are some tips to help employers in this season:

When school is not in session many students seek to fill their summer hours with a job or an internship. While these opportunities are a great way for students to build a work ethic and gain experience, employers should be mindful of a few potential pitfalls.

With the economy down and the number of job openings scarce, unpaid internships have become increasingly popular in recent years. When properly classified, interns are not considered employees, and the minimum wage, overtime and child labor provisions of state and federal laws do not apply.

Be warned, though: An individual is not an “intern” just because he or she volunteers to work for free, and the relationship is labeled as an “internship.” Instead, according to the U.S. Department of Labor, an individual may be considered an intern and not an employee only if all of the following six criteria are met:

The internship is similar to the training that would be given in an educational setting;

The internship is for the benefit of the intern;

The intern does not displace regular employees, but instead works under their close supervision;

The employer that provides the training derives no immediate advantage from the intern’s activities, and on occasion, operations may actually be impeded;

The intern is not necessarily entitled to a job at the conclusion of the internship; and

Both the employer and the intern understand that the intern is not entitled to wages for the time spent interning.

Firms wrong about their treatment of interns can be liable for back wages and a host of penalties. In light of recent evidence that the Oregon Bureau of Labor and Industries is increasing its scrutiny of unpaid internships, now is a good time to review the parameters of present internships carefully for compliance. When in doubt, consult an attorney.

Because both Oregon and federal laws regulate the employment of minors extensively, it is impossible to provide a succinct summary in this area. However, be aware that while minors are generally protected by the laws governing adults (such as those pertaining to minimum wage, overtime and discrimination), there are strict limitations on the number of hours a minor may work, along with the types of work a minor may perform.

Additionally, an employer that hires a minor is required to verify the youth’s age, as well as apply for a single, annual employment certificate with the Bureau of Labor and Industries’ Child Labor Unit. As always, call an attorney if questions arise.

When long, sunny days finally arrive, many employees are understandably eager to substitute their cold-weather gear for shorts, tank tops and flip-flops. Although most employees can be trusted to wear appropriate attire to work, there are always exceptions.

Consider sending a gentle reminder to employees before someone chooses to show up in board shorts. And, more importantly, always enforce the dress code in a uniform manner, without regard to an employee’s race, age, gender or other characteristic protected under local, state or federal law.

When the weather is favorable, everyone wants to head for the exit as fast as possible at the end of the day. Some employees may even ask to skip their lunch or rest breaks in order to leave early. However, complying with these requests runs afoul of the law – meal and rest breaks are required under Oregon law, and may not be skipped to accumulate time.

Summer also tends to draw vacation requests, often seemingly during the same week. To minimize scheduling problems, ensure a clear vacation scheduling policy is in place that may, for example, require a certain amount of advance notice or describe how vacation will be awarded in the event that too many employees request the same days off (i.e., based on seniority or length of advance notice).

Consider sending a friendly reminder about vacation scheduling early in summer, and apply the policy consistently throughout the season.

Melissa Healy is an attorney with Barran Liebman LLP. Her practice focuses on employment litigation and advice. Contact her at 503-276-2111 or mhealy@barran.com.